Sunday 29 April 2018

Whether government is liable to provide transit accommodation in case of demolition of dilapidated building?

We cannot sidetrack the difficulties of such old legal tenants of such old chawls/buildings owned by poor landlord/owner who are unable to commercially exploit the land property but, as stated to be under obligation to provide temporary alternate accommodation till the construction/development of the dilapidated, dangerous buildings on the land. Such statutory or otherwise legal tenants/occupants cannot be treated on lower footing than the unauthorised or authorised slum dwellers/occupants on Government or local body's land or property, specially when the urgent situation of compulsory razing of such dilapidated old buildings crops up. The State or local authorities are willing to provide such occupants, dwellers/tenants temporary and/or permanent alternate accommodation as recorded in earlier orders (supra). They have permitted various settlements for the same.

17. All human beings problems/difficulties just cannot be overlooked when it comes to vacation or eviction of compulsory leaving of home/premises, even for want of development of the property by the developer/owner or the society itself. The cooperation and settlement is the solution. The State or local bodies having once decided to provide temporary or permanent shelter with all facilities, as recorded above, the similar policy and/or housing policies, should be, on certain conditions and taking note of the circumstances for such poor tenants/occupants, required to be framed. Therefore, this Guideline No. 3 for reconsideration of the issues so mentioned.



18. It will be open to the Petitioners to apply to the State Government for temporary alternate transit accommodation till redevelopment of the building in question which shall be considered sympathetically. It will also be open to the developer, if so appointed, to provide the temporary alternate accommodation till the redevelopment of the new building, if any.

            


IN THE HIGH COURT OF BOMBAY

Writ Petition (Lodging) No. 2371 of 2014

Decided On: 08.10.2014

Zubair Malik Vs. Municipal Corporation of Greater Mumbai

Hon'ble Judges/Coram:
Anoop V. Mohta and A.S. Gadkari, JJ.

Citation: 2015 (1) ALL MR 543




1. Rule, returnable forthwith. Heard finally by consent of parties.

2. The Petitioners have filed the present Petition, as the Respondent/Corporation has issued notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short, "MMC Act"), basically with a prayer that as the landlord is not in a position to provide alternate temporary accommodation, though expressed intention to provide permanent accommodation (tenanted or ownership), based upon the actual commercial exploitation of the premises/land, that is after development of the land/building based upon the Development Control Regulations for Greater Mumbai, 1991 (for short, "DCR") and other related provisions.

3. The Respondents are under obligation to take effective steps if building is declared in C-1 category being in dangerous and dilapidated condition. The Respondent/Corporation's affidavit dated 22 September 2014 further supports the case that the building is required to be demolished.

4. This Court on 5 September 2014 has granted protective order, not to take coercive steps based upon the impugned notice with a clear observation that any occupancy shall be at the risk and consequences of the occupants. The submission again is made that Respondents 4 and 5 be directed to provide at least an alternate temporary accommodation pending the development of the property. Therefore, we issued notice to Respondents 4 and 5.

5. All Respondents are opposing the reliefs claimed. The submission is also made that the Petitioners must vacate premises of their own, failing which a requisite procedure needs to be followed, to evict them to avoid further complication and/or an untoward incident, which may result in loss of life apart from of occupants and also of passers-by. The statement is made that a portion of the building was already collapsed.

6. The learned counsel appearing for the Petitioners, on instructions, makes statement that there are 11 members including the Petitioners who are in possession of the premises. However, the statement is made by the learned counsel appearing for the landlord that except one or two, most of the occupants have already vacated the premises. The matter adjourned even for exchange of their proposal for settlement.

7. The Respondents-the Corporation/the landlord even otherwise are bound by the guideline orders of this Court in Original Side Writ Petition (Lodging) No. 1135 of 2014-Municipal Corporation of Greater Mumbai v. State of Maharashtra, (Anoop V. Mohta & A.A. Sayed, JJ.) decided on 23 June 2014 and 13 August 2014 [LAWS (BOM)-2014-6-52] as the building in question is of C-1 category.

8. At this stage, it is relevant to note the following paragraphs of Order (supra).

In order dated 23.06.2014: (Guideline-I)

"9 p) In case privately owned buildings are demolished by the Corporation in exercise of power under Section 354 read with the present order, then the Corporation shall, while granting sanction of redevelopment, impose a condition in IOD (Intimation of Disapproval) that no Commencement Certificate will be issued under section 45 of the MRTP Act, 1966 unless and until an Agreement either providing a Permanent Alternate Accommodation in a newly constructed building or a settlement is arrived at by and between the tenants and/or occupiers and the landlord in respect of the said demolished premises, is filed with the Corporation at the earliest.

10. The above order in no way restricts the power and scope and purpose of Section 354 of said Act. The Commissioner/Corporation and its Officers shall act in accordance with law. These guidelines will not affect any orders passed in pending proceedings and are not to be read and interpreted to restrict or permit the Corporation or any party to go beyond the statutory provisions of law. This order is necessitated essentially to make Section 354 effective and to see that human lives are not in any manner compromised. The Corporation and its officers to follow other pre-steps and provisions before issuing Section 354 notices and/or such other notices.

11. The list of dilapidated/dangerous C1 category buildings/structures shall be published in advance on the website of the Corporation so that effective steps can be taken by all concerned, by all available modes and methods. A copy of this order shall also be published on the website of the Corporation and State of Maharashtra as also other Local Authorities etc..

12. It is reiterated that this order covers only C1 category buildings which are unsafe and declared as dangerous, and the demolition, if any, shall be carried out by the Corporation in accordance with law and in no manner preempts/curtails the rights of any person/s from objecting and/or approaching the Court and if a case is made out to pass appropriate orders on its own merits and in accordance with law. It is also clarified that during the interregnum, in appropriate cases, the Corporation would be at liberty to take all safety measures, including propping up, etc., of the buildings/premises and enclose/fence the surrounding area in accordance with law.

In order dated 13.08.2014: (Guideline-II)

5. A building would always have a shelf-life. By way of proper maintenance and repairs, that shelf-life can be extended for a few years. There would however always be a point where repairs are not feasible and the building is required to be pulled down and re-constructed/redeveloped. Majority of the old tenanted buildings in Mumbai have outlived their lives, whether cessed or noncessed. Mumbai, which is said to be the financial capital of the country and come to be known as a world city, can ill-afford a situation where such old buildings remain in a state of dis-repair and collapse, which unfortunately has become a common phenomenon each year, come monsoon. This not only consumes human lives, but also sends a wrong signal world over.

6. In the circumstances, we are of the view that it is time that the State Government steps in. It is expected of the State Government to take appropriate measures and set a mechanism in place and/or consider bringing out an appropriate legislation/policy, if necessary, to salvage the situation and address the apprehensions and concerns of the tenants/occupants (of such dilapidated and unsafe buildings) or for that matter the landlords/owners (who are often subjected to criminal prosecution) and all concerned and to prevent loss of human lives. Passing orders by Court of forcible eviction of tenants/occupants of dilapidated and unsafe C-1 category buildings (so as to prevent loss of human lives) and consequent demolition of such buildings and/or providing some conditions in IOD as regards commencement of construction by landlords/developers (so as to protect the interest of the tenants/occupants) in terms of our order dated 23.06.2014, is no solution. It is only a transient measure. Such situations can hardly be left in a state of flux. It needs to be ensured that redevelopment of such dilapidated and unsafe buildings, whether cessed or non-cessed, takes place at the earliest and the tenants/occupants are put back in possession of the newly constructed building within a stipulated time frame and the landlords too get their due.

7. We are conscious of our powers under Article 226 of the Constitution as also the limitations of the State Government. However, at the same time, we need to highlight this issue and cannot be unmindful to this human problem and turn a blind eye. The fact that presently there is no legislation or policy in place in respect of redevelopment of tenanted non-cessed buildings, is not an answer to the problem. Prima facie, we find that even in case of cessed buildings in the island city, the provisions of MHAD Act have been unfruitful so far as redevelopment is concerned and in our view, there has to be some mechanism in place to take things forward in the event the landlords or for that matter, the tenants/occupants (in case of their inability to procure 70 percent consent as required under DCR) are not able to redevelop the building/s by taking advantage of the schemes under the provisions of DCR. There is, in our view, a need for some serious introspection."

9. Respondents 4 and 5 have resubmitted that because of their poor financial condition, it is not possible, at this stage, even to provide alternate temporary accommodation to the occupants. They are in search of a developer/builder to utilise the land in question after demolition, based upon which, they will be in a position to provide them tenanted and/or ownership basis permanent accommodation in the newly constructed building, if any. The statement so made in writing and produced in court dated 1.10.2014 is taken on record and marked "X" for identification purposes. The same is signed by the Advocate for Respondents 4 and 5 and sons of Respondents 4 and 5, who are authorised to sign on behalf of Respondents 4 and 5. Respondents 4 and 5's statement as relevant is reproduced as under:

"1 The Respondent No. 4 and 5 hereby agree to provide the alternate tenanted premises, in the building as and when constructed as they are in process of searching Developer and since it will take time as the Developers find difficult to carry out construction as the building is situated in the height restriction zone due to Air Port is very closed to same and its low line area and there is always flood during monsoon.

2. To grant alternate premises to the tenants (tenanted or ownership) it all depends on under which D.C. Rules the developer is going to develop the building and in which D.C. Rules the Corporation is going to grant permission for development. However, the Respondent No. 4 and 5 hereby agree to abide the provisions and rules of D.C. Rules applicable to the said building for reconstruction so far as right of tenancy is concerned."

10. The learned counsel appearing for the Petitioners submitted that Respondents-owners/landlord/Corporation and the State of Maharashtra are under obligation, in such circumstances, to provide alternate temporary accommodation as the occupants/Petitioners will be rendered shelter-less/homeless. They do not have any other place to live in with their family. The Petitioners have placed on record a written submission of "Important Notes", which is taken on record and marked "Y" for identification purposes. The relevant extract are in following terms:-

"1) That by Bombay Act No. 13 of 1933, Chapter-XIIA "City improvement" as well as Section 61(t) was inserted in the MMC Act, 1888. Section 61(t), r/w Section 354-C(1) imposes a obligatory statutory duty on the Commissioner to proceed for "Improvement Scheme" in respect of Building unfit for human habitation, dangerous or injurious to the health of inhabitants and/or of the neighbouring buildings, which can be effectually remedied by way of improvement scheme and reconstruction of the Building. The Commissioner may proceed for improvement scheme as provided under the provisions of Section 354-C and subsequent Sections 354-D upto 354-N of the MMC Act.

i) Section 354-R makes the provision when the Corporation decides to demolish the buildings without making an improvement area. Section 354-RG provides power to acquire cleared land which owners have failed to redevelop. 354-RI deals with redevelopment areas, whereas, 354-RJ deals with the redevelopment plan.

ii) For recovery of expenses, the provisions are given u/s. 489 of the MMC Act which empower the Commissioner that on failure on the part of the owner to comply with the requisitions, the Commissioner shall execute the work by himself at the cost of the land owner and it includes Section 354 also.

vi) Therefore, this Hon'ble Court in the interest of justice has the sufficient powers to give direction to the owner or the Corporation to proceed for compliance of its mandatory statutory duties. Moreover, by the 74th Amendment in the Constitution by way of viz. 12th Schedule read with Article 243-W, the items related to Urban Planning including Town Planning, Regulation of land use and construction of Buildings, planning for economic and social development, etc are the duties imposed on the Corporation. Thus, these provisions contained under MMC Act as stated above have been given Constitutional mandate, which duties cannot be denied to the benefits of these Petitioners. That therefore, the provisions of Section 354 of the MMC cannot be read in isolation and has to be read with the Constitutional provisions as stated above alongwith the provisions contained u/s. 61(t) r/w Section 354-C and following Sections of the MMC Act related to improvement scheme, clearance area, redevelopment of clearance area and other related provisions. Section 354 of the MMC Act was enacted in the year 1888 and the scene drastically changed on enactment of the Constitution on 26.11.1949 and conferment of the fundamental rights on every citizen. Therefore, if Section 354 of the MMC Act would be read in isolation, it would violate the fundamental right to shelter of the Petitioners and hence, would be ultra vires and void. Therefore, it is necessary to read the legislative intent of the year 1933 and also the mandate of Articles 14, 21 of the Constitution of India, 1950.

2. That apart, for Mumbai Island City, for old dilapidated tenanted buildings, redevelopment scheme under DCR - 33(7) and DCR 33(9) have been framed by the State Government, however, in respect of similarly situated buildings in Mumbai Suburbs and within the limits of Greater Mumbai area, no such provision is made. This amounts to discrimination in respect of the similarly situated group of citizens within the limits of Greater Mumbai area and violate Article 14. Therefore, State Government is also under obligation to take necessary corrective and remedial steps to remove this discrepancy, discrimination and violation of Article 14 and to take all such effective steps as interim measure including providing of alternative transit accommodation to the Petitioner as a remedial measure."

11. The submission is also made, based upon various judgments in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & ors. v. V.R. Rudani & ors. MANU/SC/0028/1989 : (1989) 2 SCC 691, Ramesh Ahluwalia v. State of Punjab and others MANU/SC/0865/2012 : (2012) 12 SCC 331, and Sakiri Vasu v. State of Uttar Pradesh & ors. MANU/SC/8179/2007 : (2008) 2 SCC 409. These cases are not sufficient to grant the reliefs so claimed. The facts and circumstances are totally different and distinguishable.

12. The provisions so read and referred are no way support their contention that the poor landlord or landlord who is not in a position to provide alternate accommodation (temporary or permanent) and/or even the Corporation and/or in a given case, the State, is under legal and/or statutory obligation to provide such alternate accommodation to the tenants/occupants as landlord is not in a position to provide the same. We are not concerned with any "improvement scheme" as referred in those sections and so also no such "clearance" or "redevelopment plan". The relationship of private landlord and tenant is based upon the private contract. The constitutional and/or statutory obligation relating to town planning scheme is on different footing. The issue so raised is totally different. Nothing wrong with the respective provisions. The submission is made that "Doctrine of Implied Powers and Authority" need to be extended as the question is of their right to life as contemplated under Article 21 of the Constitution of India. We have to consider the rights and legal obligations of all the parties based upon the law and the declared policy. There is no direct provision placed on record to justify the submission referring to Respondent/Corporation and/or State's obligation to provide such alternate accommodation. This, in no way, read to mean that if a policy decision is taken by the State and/or the Corporation, based upon which, in a given case, subject to other criterion and/or eligibility, they cannot do so. The point, at this stage, is to issue appropriate a writ, order or direction against the Respondents, which, in our view, is impermissible.

13. So far as the appropriate guidelines are concerned, we have also expressed considering the present scenario of the society, referring to such issues and basically in dispute between the private landlord and tenant/occupants. We have also recorded that in other buildings specifically owned by local authorities and/or Government and/or cessed buildings. Such owner/landlords are providing even temporary alternate accommodation, till they develop their property, but there is no such provision so far as the private landlord and/or owner of the property to provide such alternate temporary accommodation. The obligation on landlord, even if any, so imposed under Section 14 read with Section 16 of Maharashtra Rent Control Act, 1999 cannot be invoked in this writ jurisdiction for directing them to provide such temporary alternate accommodation, if landlord is unable to do so.

14. We have also observed in our guidelines in such situation so far as the role of Corporation is concerned, while considering and/or while granting permission to develop such property by the landlord/owner, overlooking the rights of the tenants/occupants, who are otherwise entitled to re-house as tenant in the newly constructed building, if any. This, in no way, read to mean that the landlord/owner cannot settle the matter taking note of commercial exploitation of the property in question. We have already recorded and disposed of number of matters where the owners/landlords themselves have offered a permanent accommodation to such occupants, through the settlement.

15. There are situation where the owners have expressed their inability to provide even the basic alternate accommodation, as expressed in the present case. The submission, therefore, to direct the Respondents to provide temporary alternate accommodation immediately is unacceptable. This, in no way, read to mean that parties cannot settle the matter and/or the landlord/owners can, at any point of time, offer and/or settle the matter by all possible means, including paying compensation instead of providing temporary or permanent alternate accommodation. The power of writ jurisdiction for want of policy and/or law and in view of their private relationship as landlord and tenant, it is difficult to direct and/or pass order as prayed in this regard.

16. We cannot sidetrack the difficulties of such old legal tenants of such old chawls/buildings owned by poor landlord/owner who are unable to commercially exploit the land property but, as stated to be under obligation to provide temporary alternate accommodation till the construction/development of the dilapidated, dangerous buildings on the land. Such statutory or otherwise legal tenants/occupants cannot be treated on lower footing than the unauthorised or authorised slum dwellers/occupants on Government or local body's land or property, specially when the urgent situation of compulsory razing of such dilapidated old buildings crops up. The State or local authorities are willing to provide such occupants, dwellers/tenants temporary and/or permanent alternate accommodation as recorded in earlier orders (supra). They have permitted various settlements for the same.

17. All human beings problems/difficulties just cannot be overlooked when it comes to vacation or eviction of compulsory leaving of home/premises, even for want of development of the property by the developer/owner or the society itself. The cooperation and settlement is the solution. The State or local bodies having once decided to provide temporary or permanent shelter with all facilities, as recorded above, the similar policy and/or housing policies, should be, on certain conditions and taking note of the circumstances for such poor tenants/occupants, required to be framed. Therefore, this Guideline No. 3 for reconsideration of the issues so mentioned.

18. It will be open to the Petitioners to apply to the State Government for temporary alternate transit accommodation till redevelopment of the building in question which shall be considered sympathetically. It will also be open to the developer, if so appointed, to provide the temporary alternate accommodation till the redevelopment of the new building, if any.

19. The parties, however, are at liberty to settle the matter at any point of time.

20. We have granted by earlier orders time to vacate the premises to the Petitioners/occupants which was lastly extended on 1.10.2014 upto 7.10.2014.

21. For above reason and for the reasons already recorded in earlier orders and as the building is in dilapidated and dangerous condition and as most of the tenants have vacated, as recorded above, and therefore, in the interest of justice, to avoid further complication, we are extending the time for two weeks from today as the statement is also made that the Respondents have not even followed the guidelines/judgments so referred above referring to actual measurement of the premises and preparing the list before demolition. The Respondent/Corporation is directed to complete those formalities within two weeks. The Petitioners to cooperate in all respects.

22. In case the occupants fail to vacate the premises, the Respondent/Corporation shall be free to invoke the power as contemplated under the MMC Act and as expressed in the earlier judgment/orders of this Court in this regard, which includes taking appropriate help/assistance from Police.

23. It is made clear that the occupancy of the Petitioners/occupants shall be at their risk and consequences.

24. There is no question of disconnection of water supply and electricity till the date of eviction subject to conditions in accordance with law.

25. The Writ Petition is accordingly disposed of. Rule is disposed of accordingly. There shall be no order as to costs.



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